“Those who make peaceful revolution impossible will make violent revolution inevitable” –John F. Kennedy, 35th President of the United States
Napoleon once remarked: “When a king is a kind man, his reign is judged to be a failure.” This is a warrant for tyranny, a self-justifying ordinance that presumes power to be the principle of effective governance. And because governance is founded on law, the Napoleonic view is that law is a question not of morality, but of power. Law, in this way of thinking, is not about what is right, but about what works. Society is seen as a machine, rather than a network of experiences tempered by values. The parts of a machine do not act according to conscience; they act according to their function.
The reconciliation between what is right and what is possible necessarily entails compromise. Governments elected with a mandate are likely to discover impediments to executive action. Leaders with the best of intentions betray the hopes of their citizens. This expectation is one of the accommodations of democracy. Auden’s “Epitaph on a Tyrant” begins: “Perfection, of a kind, was what he was after…” Democracy does not begin with perfection of any kind. It is thereby the least disappointing system of government, but not necessarily the most inspiring or creative. It is necessarily compromised.
But moral compromise is not moral inertia. In politics, what can laws do without morals? They can subvert the constitution they are entrusted to defend. This is the reason Martin Luther King referred to an unjust law as “a code that is out of harmony with the moral law”, and called for civil disobedience of unjust laws.
In Kenya, history has it that in 1975, Parliament passed the famous “Ngei Amendment”. But the behind the curtains, the story of how it was passed is one of utter dismay. Then President Jomo Kenyatta gave Attorney-General Charles Njonjo 12 hours to draft an amendment to widen the prerogative of mercy to election offences, so that the president could pardon Paul Ngei – he was ousted from Parliament after a successful petition in 1975 in the high Court, when he was found guilty of an election offence.
Parliament, then about to go on break, was warned that the recess was contingent on passing the amendment. To speed things up, the guillotine procedure was adopted and the bill passed three readings in an afternoon. Kenyatta then used his new powers retrospectively and pardoned Ngei for an election offence that pre-dated amendment. In short, once amending the Constitution became easy, political controversies were settled by changing it such that instead of regulating politics, the Constitution became a weapon in political struggle, as Prof Githu Muigai (current Attorney-General) once lamented. Chastened by similar conduct, Kenyans passed the Constitution 2010 which not only made the law that much harder to amend but also mandated that critical changes be ratified by referendum.
Diminished by barbarism
However, in the recent times, Kenyans are fighting again so that they are not diminished by yet another act of barbarism in the cause of political expediency.
Political expediency can be loosely defined as acts dictated by prudent motives that are immediately advantageous but without regard for ethics or consistent principles thus such acts lack candour or sincerity. It can also be understood to mean something that somebody does to advance oneself politically without regard to morals or the after effects. A critical awareness of the consequences, especially the unintended consequences, is necessary.
If the essence of progress is a leap of faith, the essence of democracy is doubt. It is a civic virtue to demand something better. It is a civic virtue to question the wisdom of change. It is also a civic virtue to question the wisdom of present circumstances and prevailing beliefs. To doubt is not necessarily to be cautious. There are times when doubt is a spur to passionate impulses that claim justification from a higher authority than the legitimacy of governing principles.
Parliament plays an oversight role on the Executive. Legislators’ functions include passing laws, ensuring transparency and accountability, monitoring the implementation of government programmes and projects and debating matters of national interest. It is, therefore, trite to appreciate the magnitude and level of the function of a Parliament and, by extension, that of parliamentarians.
However, when the rule of law is supplanted by the rule of political expediency in Parliament, you get a house full of leaders that smacks of a need for change. As members of the 11th Parliament tackle their mandate as representatives of the people and members of the critical legislative arm of government, one cannot avoid the speculation that their performance is inevitable.
Amongst the members of the 11th House are a handful with educational achievement; and others with corruption allegations hanging over their heads like a halo. As if that were not enough, some returning Members of Parliament accused of allegedly misappropriating money from Constituency Development Fund apparently came back to the august House, courtesy of the watering down of Chapter Six of the Constitution on Integrity, scot-free, shame-free and altogether remorse-free.
Cash-for-questions and its variants
With such a cocktail of irregularities and potpourri of misdemeanours stewing and simmering in the calabash that is the 11th Parliament, a question of political expediency arises on whether members have deviated from their mandate to fulfilling party and personal obligations.
Parliament has been turned into a business hub looking to influence any policy or legislation tabled before it. Dr Matiangi, the Cabinet Secretary for Information, Communication and Technology, in “A 2006 Case Study on the Role of Parliament in the Fight against Corruption: The Case of the Kenyan Parliament”, stated that “No one lobbies a weak legislature, but as legislators’ authority over policies increases, so will attempts to influence them.” This, he states, led to rise of “cash for questions”, where MPs were alleged to be induced by cash rewards to ask particular questions in Parliament. Such actions, though still active, have now taken a different form in the name of “Tyranny of Numbers”. Thus, even though Parliament is a crucial independent organ of the government, the integrity of its members is just but something on paper; actualising it is something yet to be realised.
Mid this year, corruption allegations were levelled against the chair and all members of the Public Accounts Committee (PAC). These included claims of members soliciting and taking bribes from senior public servants to influence the outcome of report under investigation. Primary evidence was released in the form of a recording which implicated the MPs in the practice.
Corruption is often condoned and abetted if it caters to self interest.
The above acts are contrary to the Constitution and Parliamentary standing orders. Article 75 of the Constitution is clear that state officers’ public and private behaviour must avoid conflict of interest between their personal interest and public or official duties. Compromising any public or official interest in favour of a personal interest demeans the office the officer holds. It is therefore clear that corruption festers prominently at the committee level, which is pivotal in determining and shaping debate in the plenary. These strong allegations imply that whatever happens at the plenary is normally already decided upon, and it is just a stamping exercise.
Chapter Six of the Constitution of Kenya 2010 on Leadership and Integrity sets the standard of ethics which those seeking public office must fulfil. Further, the High Court of Kenya, in the case of “Trusted Society of Human Rights Alliance v The Attorney General and Others” held that “a person is said to lack integrity when there are serious unresolved questions about his honesty, financial probity, scrupulousness, fairness, reputation, soundness of his moral judgment or his commitment to the national values enumerated in the Constitution. In our view, for purposes of the integrity test in our Constitution, there is no requirement that the behaviour, attribute or conduct in question has to rise to the threshold of criminality. It thus follows that the fact that a person has not been convicted of a criminal offence is not dispositive of the inquiry whether they lack integrity or not…it is enough if there are sufficient serious, plausible allegations which raise substantial unresolved questions about one’s integrity.” The standard envisioned here is that a person need not attain criminal culpability for them to have a questionable integrity.
Acts of political expediency by the 11th Parliament abound from the allegations of the Parliamentary Accounts Committee being accused of abetting corruption, receiving bribes, and doctoring documents to the Security laws amendment bill, where the National Assembly sought to introduce sweeping powers to state organs. The drama surrounding the defunct Parliamentary Accounts Committee was a thing for the theatre, where there were accusations and counter accusations of corruption within the committee. The issue brought a lot of disgrace to Parliament, and even prompted Parliament’s leadership to retreat and attempt to salvage the image of the House by coming up with rules to govern MPs. It was further ironical for Parliament, through the Powers and Privileges Committee, to investigate the inactions of PAC – a case of double standards where parliament investigates itself.
Despite the cosmetic attempts at putting the august house on the straight and narrow, the most brazen form of political expediency by the 11th Parliament occurred recently when the lawmakers approved a bill that could see journalists slapped with huge fines or jailed if found guilty of “defaming” parliament. The offending clauses were later dropped.
The Parliamentary Powers and Privileges Bill, 2015, contains the most egregious form of political expediency by the current parliament. The bill is clearly an attempt by parliament to carve for themselves a cocoon in which the media, which, in a democratic society such as ours, acts as the eyes and the mouth of the people, would be completely barred from bringing to light the lawmakers’ recurrent misdeeds.
Among the functions of Parliament are oversight and representation. Parliament seems to have thrown its key role out the window and instead opted to focus on pure self interest, fuelled by political survival. Parliamentary Hansards are replete with parliamentary debates which are purely focused on myopic political issues and have little to do with issues of concern to the people of Kenya, as required by the constitution.
Searching for a robinhood
There seems to be no light at the end of this particular tunnel. It appears that despite consistent criticism from the public and the civil society, Parliament has grown a thick skin impermeable to legitimate and constructive criticism, and continues on its own frolic, with the sole intention of serving itself, and contributing very little to bettering the lives of Kenyans.
The time may be right for the public and civic societies to consider other ways of ensuring that Parliament focuses on issues of concern to the people. In the search for a robin hood against the misdeeds of Parliament, the Judiciary has stood up as an able champion of the Constitution in the way it has competently and soberly handled disputes that have their genesis in Parliament.
For instance, the Judiciary outlawed important portions of the security laws, ordered the National Assembly to work with the Senate on the Division of Revenue bill and even condemned the MPs’ cookie jar – the Constituency Development Fund – as unconstitutional.
Kenya’s problem is not laws but implementation of laws. Kenyan laws are adequately robust in fighting corruption and providing provisions for integrity to inform decisions in public office. People need to resign when implicated as a sense of honour not when told by someone else, for example. We should not only eliminate the opportunities for graft but also place integrity and the Kenyan people at the heart of public service.
Finally, it is important that we reset and refurbish the political clout that is vested in Parliament, failure to which the democracy we enjoy might be at risk. As Adlai Stevenson said “The idea that you can merchandise candidates for high office like breakfast cereal – that you can gather votes like box tops – is… the ultimate indignity to the democratic process.”